Tag Archives: Free Speech

Why do we protect free speech? My colleague, Marc, argues in his current draft that Americans, historically, have protected free speech on one of two theories. On the first, we protect free speech in order to promote individual expression. On the other, we protect free speech in order to advance the public welfare. These two conceptions can lead to different results in particular cases. Take hate speech, for example. If one thinks free speech is about promoting individual expression, one would give speakers a great deal of leeway, even when their speech insults others–on the basis of religion, for example. On the other hand, if one thinks free speech exists to promote the public good, one would be less inclined to allow speech that injures the dignity of third parties, at least without some compelling reason.

To allow or restrict hate speech is a hotly debated issue in many societies. While the right to freedom of speech is fundamental to liberal democracies, most countries have accepted that hate speech causes significant harm and ought to be regulated. Richard Moon examines the application of hate speech laws when religion is either the source or target of such speech. Moon describes the various legal restrictions on hate speech, religious insult, and blasphemy in Canada, Europe and elsewhere, and uses cases from different jurisdictions to illustrate the particular challenges raised by religious hate speech. The issues addressed are highly topical: speech that attacks religious communities, specifically anti-Muslim rhetoric, and hateful speech that is based on religious doctrine or scripture, such as anti-gay speech. The book draws on a rich understanding of freedom of expression, the harms of hate speech, and the role of religion in public life.

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If you want to know about the law of religious freedom in the United States today, you have to know about free-speech doctrine as well: Many religious-freedom cases, including Masterpiece Cakeshop, which is currently before the Court, involve free speech as well as free exercise claims. And, in a development no one predicted a generation ago, free speech has gone from being a concern of the Left to a concern of the Right. Today, on campuses and increasingly in public life more broadly, it’s typically conservatives who insist on the right to speak, as against progressives who see free speech as a vehicle for oppression. These matters are no doubt discussed in a new book by Floyd Abrams, The Soul of the First Amendment, released last month by Yale University Press. I think of Abrams both as a progressive and a free-speech absolutist, which makes him a bit of an anomaly nowadays, and his views on today’s controversies will be very interesting. Here’s the description from the Yale website:

A lively and controversial overview by the nation’s most celebrated First Amendment lawyer of the unique protections for freedom of speech in America

The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden.

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It’s odd that free speech is becoming a conservative value. There was a time when progressives championed free speech, in order to challenge middle-class conventions, and conservatives argued for restrictions in the interest of decency and tradition. As progressives have taken charge of institutions they once protested, however, the positions have reversed. Many progressives now seek to limit speech, for example, in order to protect campus minorities from religiously-motivated “hate speech,” and conservatives call for robust, wide open debate. Life can be funny, sometimes. Of course, some old-fashioned, classical liberals have maintained their commitment to free speech throughout, though it does seem their numbers are dwindling.

Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. In Speak Freely, Keith Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including fostering freedom of thought, ideological diversity, and tolerance.

Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university’s mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how better understanding why the university lives or dies by free speech can help guide everyone—including students, faculty, administrators, and alumni—when faced with difficult challenges such as unpopular, hateful, or dangerous speech.

Timely and vitally important, Speak Freely demonstrates why universities can succeed only by fostering more free speech, more free thought—and a greater tolerance for both.

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For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below: